The applicant was detained by British forces who were occupying Southern Iraq in 2004. He was detained not under the law of occupation, nor on a criminal charge in pre-trial detention, but under the authority to detain preventively which was arguably granted to the US and UK by the UN Security Council in Resolution 1546.250 He claimed that his detention was
247
HM Treasury v A (others) (Lord Bingham) para 74.
248
Behrami v France ; Saramati v France, Germany and Norway (2007) 45 EHRR SE 85 , para 149
249
Marko Milanovic, The European Journal of International Law Vol. 23 no. 1, 2012
250
Acting under Ch VII of the Charter, the Council decided ‘that the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism.’ The letters
unlawful under Article 5 ECHR, which, absent any derogation, does not allow for such preventive security detention, without judicial review. The UK had argued that under Article 103 of the UN Charter,the grant of a detention authority in Resolution 1546 prevailed over the contrary prohibition in Article 5 ECHR. During the protracted judicial proceedings through the various Courts there were a number of significant developments. Firstly the imposition of targeted sanctions against suspected terrorists by the Security Council under resolutions 1267 and 1373 and the reliance by states on Article 103 to preclude any human rights-based challenge to these sanctions.
Secondly the ECtHR decided the Behrami and Saramati case,251 which in many ways mirrored Al-Jedda. Specifically, Mr Saramati was detained by international forces in Kosovo (KFOR) on preventive grounds, on the basis of purported detention authority in Security Council resolution 1244, which was argued to prevail over Article 5 ECHR. In its decision, however, the Court did not reach the Article 103 issue, holding instead that the actions of KFOR troops were not attributable to individual troop contributing states, but to the UN, as by authorizing the military mission in Kosovo the UN Security Council supposedly exercised ‘ultimate authority and control’ over it. The Behrami ruling had been heavily criticized,252
again not merely for its end result, but for its numerous methodological flaws and its failure either to apply or at least openly to disagree with the effective control rule codified in the draft Article 5, and now draft Article 7, of the International Law Commission’s (ILC) Draft Articles on the Responsibility of International Organizations (DARIO)253, as finally adopted by the ILC on second reading on 3 June 2011.254 Indeed, the ILC itself considered and explicitly rejected Behrami.255Most importantly, from a law of international responsibility
referred to were sent to the Council by the then U.S. Secretary of State, Mr Colin Powell, and the interim Prime Minister of Iraq, Dr. Ayad Allawi. Mr Powell’s letter outlined the duties of the MNF forces, stating that these ‘will include combat operations against members of [insurgent] groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security’: UN Doc S/RES/1546, para. 10.
251
App. Nos. 71412/01 & 78166/01, Behrami and Behrami v. France, Saramati v. France, Germany and NorwayC] (dec.), Judgment, 2 May 2007.
252
See for example; Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’, 8 Human Rts L Rev (2008) 151; Mujezinovic Larsen, ‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control” Test’, 19 EJIL (2008) 509; Milanovic and Papic, As Bad As It Gets: The European Court of Human Rights, Behrami and Saramati Decision and General International Law, 58 ICLQ (2009) 267.
253
Draft Articles on Responsibility of International Organisations adopted by the International Law Commission on 3 June 2011, http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_11_2011.pdf, accessed 3 April 2012.
254
UN Doc. A/CN.4/L.778.
255
See G. Gaja, UN Doc. A/CN.4/610, 27, Seventh Report on Responsibility of International Organizations, Mar. 2009, 10–12.
standpoint, Behrami did not even consider the possibility that attribution of conduct may be
dual or even multiple, i.e., that the same action or inaction can be attributable both to a
member state or states and to an international organization. Indeed, when it comes to troop contingents or other military assets that states put at the disposal of international organizations, for example in peacekeeping missions, the default rule of attribution continues to apply: being organs of the state, the conduct of the troops will be attributable to the state, under Article 4 of the ILC Articles on State Responsibility. The same conduct may also be attributable to an organization, but it requires more than mere attribution to the organization for that conduct to cease being attributable to state, and this is the scenario which the DARIO effective control criterion was meant to encapsulate.
When Al-Jedda came before the House of Lords 65 it raised three major issues. First, after
Behrami was decided, the UK government started arguing that the acts of its soldiers in Iraq,
which were after resolution 1511 (2003) there under Security Council authorization, were not to be attributed to the UK, but to the UN. Accordingly, if the acts of UK soldiers in Iraq were not attributable to the UK, then the UK could not have exercised Article 1 jurisdiction over Mr. Al-Jedda. Secondly, the Lords had to deal with Mr Al-Jedda’s argument that Article 103 was inapplicable, since resolution 1546 merely authorized the UK to detain people con- sidered to be security threats, but did not oblige it to do so, while Article 103 accords pre- eminence only to obligations under the Charter. Lord Bingham did not find that argument persuasive. He considered that both state practice and academic opinion clearly favoured the applicability of Article 103 to Council authorizations, because the importance of maintaining peace and security in the world could scarcely be exaggerated, and since authorizations have effectively replaced the system of collective security that was envisaged by the drafters.256 Thirdly, finding that there was indeed a norm conflict between resolution 1546 on one hand and Article 5 ECHR on the other, Lord Bingham held that pursuant to Article 103 that conflict had to be resolved in favour of the resolution, and that its prohibition of preventative detention was accordingly displaced or qualified. However, Article 5 could be displaced only to the absolute minimum necessary so that ‘the detainee’s rights under article 5 are not infringed to any greater extent than is inherent in such detention’.257